PM (R on the application of) v Secretary of State for the Home Department

The claimant was a recognised potential victim of modern slavery who was placed in initial full-board asylum accommodation under s.98 of the Immigration and Asylum Act 1999. The claim concerned (i) whether paragraph 15.37 of the Modern Slavery Act 2015 statutory guidance (version in force until 28 August 2020) entitled victims supported under s.98 to be topped up to £65 per week (less any asylum support), (ii) the lawfulness of the Secretary of State’s replacement guidance of 28 August 2020 which reduced the top-up to £25.40 without prior consultation, and (iii) whether essential living needs of victims in initial accommodation were met.

The court applied established principles of interpretation for published guidance and followed JB (Ghana) v Secretary of State for the Home Department [2022] EWCA Civ 1392 in construing paragraphs 15.36–15.37. It held that paragraph 15.37 unambiguously applied to potential victims who were also receiving asylum support under s.98 and thus entitled them to a total of £65 per week (reduced by any asylum support actually paid). The claimant had been paid a £35 recovery payment plus modest regular cash sums from the accommodation provider (£5 per week) and was therefore underpaid £25 per week for the period 13 May 2020 to 27 August 2020.

Separately the court held that the August 2020 amendment (reducing the VCC top-up to £25.40) was introduced without adequate inquiry or consultation and therefore breached the Secretary of State’s duty to take reasonable steps to inform herself (the Tameside duty). The remainder of the claim, including a challenge that the reduced level of trafficking support was incapable as a matter of law of meeting recovery needs and that essential living needs were not met in the claimant’s case, was rejected.

Background and procedural posture. The claimant, a victim or potential victim of modern slavery, applied for judicial review after the Secretary of State ceased trafficking top-up payments to victims in initial full-board asylum accommodation on 6 July 2020 and later reinstated a lower payment via amended statutory guidance on 28 August 2020. The claim raised three grounds: (1) incorrect application of §15.37 of the Modern Slavery statutory guidance (as to entitlement to a £65 weekly total), (2) failure to consult and/or make adequate inquiry before reducing the level of trafficking support in the Amended Guidance, and (3) failure to meet essential living needs of victims in initial accommodation. The claim was stayed at points pending related cases (notably JB / JB (Ghana)) and permission was ultimately granted to pursue Ground 1 in light of the Court of Appeal’s decision in JB (Ghana).

Nature of the relief sought. The claimant sought declarations and remedies in respect of alleged unlawful cessation and reduction of trafficking support, arrears and declarations as to the lawfulness of the Amended Guidance and the adequacy of financial support for essential living and recovery needs.

Issues framed by the court.

• Whether paragraph 15.37 of the Modern Slavery statutory guidance entitled a victim supported under s.98 IAA to a total of £65 per week (less any asylum support received) while in initial accommodation;
• Whether the Secretary of State was obliged to consult or to make adequate inquiry before introducing the Amended Guidance of 28 August 2020 and whether the reduced level of trafficking support met recovery needs consistent with ECAT and the EU Anti‑Trafficking Directive;
• Whether essential living needs of victims in initial accommodation were met in the claimant's case.

Court’s reasoning and findings. On construction of the guidance the court adopted the approach in JB (Ghana): paragraph 15.37 unambiguously applied to potential victims who were also asylum-seekers supported under s.98 as well as s.95, so that where modest cash payments towards essential living needs had been provided by the accommodation provider (or asylum support), the VCC payment had to top up to a total of £65 per week. The court found that the claimant received a £35 per week recovery payment from the VCC and regular modest cash payments (£5 per week) from the hotel provider; she was therefore underpaid £25 per week for the period 13 May 2020 to 27 August 2020 in breach of the Guidance.

On consultation and inquiry, the court held the August 2020 amendment was not merely a clarification but effected a substantial policy change (and a de facto reduction in payments) and that the Secretary of State failed to take reasonable steps to acquaint herself with relevant information before reducing support. That failure breached the Tameside duty and made the Amended Guidance unlawful insofar as it was introduced without adequate inquiry or consultation.

As to adequacy of the reduced rate to meet recovery needs, the court concluded that the Secretary of State’s decision to set the interim rate at £25.40 was not irrational on the evidence before the court: the rate fell within a rational margin taking account of in‑kind provision, other support available under the Victim Care Contract and subsequent policy work and costings. On essential living needs, the court considered the claimant’s specific circumstances and found her essential living needs had been met overall during the period in question.

Disposition. The claim succeeded on Ground 1 and on the consultation/Tameside limb of Ground 2 (Ground 2(a)). The remainder of the claim was dismissed.

The claim is allowed in part. The court held (i) that paragraph 15.37 of the Modern Slavery statutory guidance applied to potential victims receiving support under s.98 IAA and that the Secretary of State unlawfully failed to make up the claimant’s payments to a total of £65 per week (less any asylum support) for the period 13 May 2020 to 27 August 2020 (the claimant was underpaid £25 per week); and (ii) that the Amended Guidance of 28 August 2020 was unlawful because the Secretary of State failed to make adequate inquiry or consult before introducing a measure that in effect reduced trafficking support (breach of the Tameside duty). The remainder of the claim, including challenges that the reduced rate could not meet recovery needs and that essential living needs were not met in the claimant’s case, was dismissed.